February 28, 2011

Restoring Wisconsin to fiscal health is not for the squeamish. The medicine is going to be bitter. Gov. Scott Walker's proposals to strip state employee unions of much of their bargaining power illustrates just how bitter.

But Walker is right to do this. He must insist that state workers pay a bigger share of their benefits. And he's right to take steps to compel them to do so.

Gov. Scott Walker's budget-repair bill is flawed. We support the governor's aim to rein in labor costs but cannot support this bill as written. . . .

But no matter how deep the budget hole, Walker and his Republican allies in the Legislature were wrong to try to bust public-employee unions. Workers have a fundamental right to organize, even when it's inconvenient for the rest of us.

In the latter editorial, the authors criticize as "reckless" the 14 Democratic State Senators for retreating to Illinois to avoid forming the quorum required to pass the so-called budget repair bill. But had it not been for the action of those 14, the Milwaukee Journal-Sentinel wouldn't even be in the position of reconsidering its former wholesale endorsement for Gov. Scott Walker's union-busting proposals.*

At least the Journal-Sentinel is paying attention, and not creepily leering over "impressionable college girls" under the Capitol dome.

Maybe he's why they were bolting the windows shut there today.

* It also endorsed him for governor in the first place. The local daily hasn't yet gone so far as to enunciate the topsy turvy buyers' remorse reflected in the latest Public Policy Polling survey (.pdf; 5 pgs.).

* As for the other case Jacobson mentions, State v. Lis, he ignores its discussion of a "benefit" to a thief requiring a corresponding loss to the victim. In this case the "victim," billionaire public figure David Koch, suffered no loss other than — arguably — some diminution of his reputation which, as Prof. Jacobson already conceded, invokes the First Amendment defense that protects the fake David Koch.

February 26, 2011

Another 100K demonstrators gathered at the Capitol in Madison this afternoon (while Fox "News" re-aired a Fox "documentary" about the Tea Party — seriously). The first opportunity Wisconsinites have to express their displeasure at the polls will be on April 5, when conservative Supreme Court Justice David Prosser faces re-election. At left is part of the photo illustrating the local daily's lead story.

February 24, 2011

I'm going to go out on a limb here and, without even having seen a motion or heard an argument, predict that the cruelty charge(s) will be reinstated. This has been a Cognitive Dissidence exclusive (the latest of many). — June 13, 2009

[W]e reverse the orders of the circuit courts dismissing the charges against the Kuenzis. We remand with directions to reinstate the charges in both cases. — February 24, 2011

You're welcome.

* ¶16 To sum up, § 951.02 prohibits "cruel" treatment of "any animal." The term "any animal" is broadly defined so that, on its face, the term encompasses the wild deer at issue in this case.

That's how Madison's chief of police sees it. Walker spokesman Cullen Werwie blows the chief off, despite Governor Walker's concerns over insinuating wing-nut agents provocateur into peaceful protests being not ones of public safety, but of covering his own political backside.

MADISON (AP) — Wisconsin State patrol officers are being dispatched to the homes of several missing Democratic State senators in the hopes that it will spur some of the lawmakers to come back in session to break an impasse on a budget bill.

The senators are not home. What purpose does intimidating their families serve? And Republicans keep telling us about union "thugs."

Walker theorizes that if the 14 Democratic senators are accepting money from unions for food and lodging, the purpose of such payments may be "to keep [the senators] from doing their job." He says that situation is "at minimum an ethics code violation ... We're trying about four or five different angles," adds Governor Walker.

No doubt they'll come up with something (something far removed from Walker's apparent willingness to hop a Koch junket to Cali).

In The Atlantic, "one of the nation's leading legal analysts" manages to complete his leading analysis without once mentioning the newly discovered power of Congress to regulate your commerce-thoughts.

It would be one thing if Judge Kessler's admonitory musings were obiter dicta; that is, extrajudicial asides offered separate and apart from the substance of the ruling itself. The problem is they are integral to her reasoning: how else could she arrive at the conclusion that the federal legislative power includes for the regulation of personal decisions taking place wholly in the province of the mind.

Judge Kessler is speaking, Andrew Cohen believes, to all who "refuse to buy health insurance in the name of federalism and the 10th Amendment." I don't know if that's why they "refuse" to buy health insurance, but at least they found something in the Constitution which mitigates against the view that "commerce among the several States" means "among the several states of human consciousness."

That's the same Andrew Cohen, incidentally, who sought to preempt the expected effect of Judge Clyde Roger Vinson's January 31 order invalidating the PPACA in its entirety by dismissing it brusquely as "a stray decision by a conservative trial judge." But today he's enamored with this wildly injudicious exercise of authority by a liberal one.

If this decision is allowed to stand, I'll eat my tricorne cheese-hat.

February 22, 2011

"Economic Decision-Making Is an Activity Subject to Congress's Commerce Clause Power," announces the United States District Court for the District of Columbia, Judge Gladys Kessler presiding.

With respect, I've a really hard time not finding that preposterous.

The judge even admits she is dealing with "mental activity," and proceeds to brook no distinction between it and "physical activity" for the purposes of assessing federal regulatory power. I mean, wow.

February 21, 2011

There is a bogus Heritage Foundation/Americans For Prosperity/Koch Industries talking point making the rounds at the moment, and Scott Walker simply means to insult your intelligence by repeating it.

FDR was not opposed to the state entering into collective bargaining agreements with its employees. He — like every other rational political actor — warned against "militant tactics" endangering essential state services. By militant tactics he meant strikes and no matter how many times Scott Walker's enablers* lie about it, nobody went on strike last week, and nobody went on strike today.

February 18, 2011

The past few days have shown us how important constitutional checks and balances can be in our state government. During my campaign for Supreme Court, I expressed my concern over the potential for over-reaching that occurs when a single party controls both the legislative and the executive branches. We must have a truly nonpartisan and independent Supreme Court to check and balance the other two branches. Unfortunately, I do not believe that Justice Prosser can be an independent jurist, based on prior statements and decisions. I am therefore endorsing JoAnne Kloppenburg in the upcoming General Election to replace Justice Prosser and to restore faith in the independence, impartiality and integrity of the court.

Wisconsin Gov. Scott Walker issued an order this morning for the State Patrol to round up any Democratic State Senators they can find and bring them back to the Capitol in Madison.

If State Patrol officers find Sen. Mark Miller (D-Monona), he will be arrested and brought back to the Capitol, Assembly Speaker Jeff Fitzgerald (R-Horicon) said.

"Bringing them back" is one thing, if it involves convincing the legislators to return to the Capitol: offering them a ride, in effect. But arresting them and taking them into custody? I don't think so.

eta: Equivocates Rick Esenberg, who is a professor of the law at Marquette University: "[I]t's not clear to me that they can't be arrested, although that would be an extraordinary thing to do."

Good heavens. Well of course the legislators could be arrested — in the same sense that they could be assaulted, for example — but it would quite clearly be an unlawful arrest, the custody even more so.

On October 28, 2009, Justice Bablitch (by then retired from that position) delivered a passionate and moving defense of the independence of the judiciary at an open hearing of the Wisconsin Supreme Court that is very much worth watching and considering.

This one does: The Municipal Employment Relations Act. Second of all, Sykes and Schneider are claiming that the "sick-outs" staged by some Wisconsin teachers in protest of Governor Scott Walker's move to repeal the collective bargaining rights of public employees are "strikes." What they base that on is not explained by either of them.

Third of all, even assuming arguendo that the sick-outs are in fact strikes, these ones are not prohibited by the real law, Wis. Stat. § 111.70(1)(nm) (a provision of the Municipal Employment Relations Act), which defines "strikes" for all of the administrative directives (law) and informational papers (not law) which proceed from it:

"Strike" includes any strike or other concerted stoppage of work by municipal employees, and any concerted slowdown or other concerted interruption of operations or services by municipal employees, or any concerted refusal to work or perform their usual duties as municipal employees, for the purpose of enforcing demands upon a municipal employer. Such conduct by municipal employees which is not authorized or condoned by a labor organization constitutes a "strike" . . .

Emphases added. That is the actual "law" to which Sykes and Schneider's citations ultimately lead, whether they know it or not.

So. These sick-outs are not "for the purpose" described above — Walker and the Republicans in the Wisconsin State legislature are clearly not municipal employers** — and furthermore: "The leader of Wisconsin's largest teachers union is asking all 98,000 members to head to Madison Thursday and Friday." That would be the "authorized or condoned," as obviously the teachers' union leader is aware that both Thursday and Friday are work days. See how easy that was?

Easier than lying, which requires mendacity. And a wing-nut.

If Schneider and Sykes want to accuse teachers of breaking the law, they'd better have better grounds for it than their own foolishness.

But sadly for both Taranto and McIlheran, the referenced Code does not apply to Supreme Court Justices.* McIlheran's rendering of Judge Ralph Adam Fine's opinion in Wisconsin Judicial Commission v. Gableman is likewise inept, but we'll have to save that for another time. Because for all the local conservative intelligentsia's** hooting about the three Wisconsin Supreme Court challengers' raising the Gableman case, they sure do love to talk about it themselves. So don't worry, we haven't heard the end of it. From the conservatives.

* Mr. Taranto actually links to the Code, but apparently scurried past the introduction to all the 'shoulds' and 'should-nots,' which in any event aren't especially punishing on anybody, something McIlheran might have noticed himself if he'd paid any attention to Judge Fine.

Fifty-five percent doesn't strike me as terribly convincing at this point. Especially if Governor Scott Walker keeps pissing off more of the other 87% with his aggressively "pro-business" agenda, which the Prosser campaign pledged to "complement," a stance even Prosser's own cohort of political supporters enthusiastically acknowledges.

There's more than enough unexercised franchise out there to close that gap and surely Justice Prosser is not going to benefit from any Stephens or Winnig supporters at the general election on April 5.

Recall that in 2009, Chief Justice Shirley Abrahamson, whose "liberal" credentials are sterling, swept 69 of Wisconsin's 72 counties over Jefferson County Circuit Judge Randy Koschnick, a jurisprude who presented himself to voters as to the right of Clarence Thomas.**

In relation to our course's examination of questions of class, economics, and the university, and our reading about alternative research strategies and writing forms, we will use the rally as a learning experience for our course.

Scandalous. And the pressure: unbearable.

The TA also tendered a full disclosure to the class as to why and how his own personal situation would be affected by the governor's action.

Far from deeming the 30-second spot misleading, what they actually found is that "each statement in the advertisement is true" (¶24).

The worst the three justices would say about it was that it was "distasteful," and even then that wasn't a conclusion they could arrive at sua sponte. They had to "acknowledge" that it was distasteful. From whence the said acknowledgment was derived, we aren't told.

What is true is that all three of Prosser's challengers have invoked Gableman. One of them, Joel Winnig, has invoked him in a manner unlikely to heal whatever discord exists on the court: he's called Gableman "a cancer" who "continues to pollute" the Supreme Court.

That's not helpful, especially as collegiality on the court has been and will continue to be — up until the general election in April — an issue.

The other two, JoAnne Kloppenburg and Marla Stephens, have been more circumspect and the point of my observation to which Prof. Esenberg took up cudgels is that the Milwaukee Journal-Sentineldid a disservice to the latter candidates when it lumped them together with Winnig. And, in its illogical endorsement of Prosser, the paper continued to ignore the distinction. More on that later, perhaps.

As for today's primary, from which surely Prosser and one of the three challengers will emerge, Kloppenburg and Stephens are the two most viable candidates. They are equally experienced, capable, and temperate. Both would make fine State Supreme Court justices.

As a question of pure politics, however, Stephens's experience has been with the State public defender's office, whereas Kloppenburg is an assistant attorney general, a member of the executive branch tasked with enforcing the law as set forth by the legislature.

Gableman's advertisement demonstrated the depths to which the right-wing smear machine will stoop to defame any lawyer who has spent time ensuring the constitutional rights of criminal defendants are zealously protected. Indeed, it's getting cranked down already, with the appearance of a phony "unbiased" front group directed by a former foot soldier to the mildly deranged evangelist Pat Robertson.

Prof. Esenberg's pal the wing-nut howler Charlie Sykes, who has a 50-thousand-watt platform to help disseminate those smears, is in on the scam as well. It's a depressing reality, but Marla Stephens would face less easily surmountable obstacles than JoAnne Kloppenburg.

* And why not. It's a fascinating case from a variety of perspectives.

Our campaign efforts will include building an organization that will return Justice Prosser to the bench, protecting the conservative judicial majority and acting as a common sense compliment [sic] to both the new [Republican] administration and [Republican] legislature. — Prosser for Supreme Court

February 13, 2011

We know Walker is trying to bait us by mobilizing the National Guard, hiring an Ohio security firm to staff any facility and instructing the capitol police to meet with legislators and "advise" them not to meet with constituents in their districts.

When one considers that most of the decisions in the report the Brawler is discussing reduce to "Injured Plaintiff v. Business," the Wisconsin Civil Justice Council's advocacy is troubling, as it suggests its endorsement of Justice Prosser is based on an assumption that he has already prejudged future cases in favor of the latter adversaries.

It's also notable that the very first decisions the WCJC cites, 2009's Horst v. Deere and its counterpart Godoy v. E.I. DuPont, contain writings either authored or joined by Justice Prosser openly lobbying for a sea change to long-accepted Wisconsin products liability law.

And they aren't making recommendations to the State legislature, as is occasionally the case with the court's opinions. Rather, the so-called conservative justices want the court itself to effectuate a radical alteration in the law despite — as Justice Crooks smartly notes — neither party to either case urging the adoption of the novel doctrine which — not coincidentally — appears in a treatise prepared by conservative academics,* the Restatement (Third) of Torts.

In different circumstances, this is what political conservatives denounce as "judicial fiat." Not that anybody should expect philosophical consistency from them. They're simply opportunists.

Almighty God created the races white, black, yellow, malay and red, and He placed them on separate continents. And, but for the interference with His arrangement, there would be no cause for such marriage. The fact that He separated the races shows that He did not intend for the races to mix.

An American judge wrote that crap in 1959, which is not all that long ago in the context of "thousands of years." Much like U.S. Senator Ron Johnson, that judge didn't see any reason to change it either.

There are impressionable, easily duped minds among us who swallowed the Journal-Sentinel's negligently misleading headline hook, line, and sinker including — not at all surprisingly — top Wisconsin conservative blogger Boots (or is he Sabers?) who refers to all three Supreme Court challengers collectively as "jokers" and "tools" that all collectively put forth "stupid and irresponsible BS."*

Both Kloppenburg and Stephens have raised the Gableman case in a legitimate and substantive manner, and the ongoing controversy is relevant because the incumbent Justice David Prosser joined an opinion (or "writing," as it has come to be known) exonerating Gableman from any wrongdoing based on an arguably misguided take on the relationship between the First Amendment and accepted principles of ethical conduct among members of the judiciary.

Winnig's comments on the other hand are easily distinguishable, whereas Stephens's and Kloppenburg's disagreements with the "writing" are no different than might be their views of any other prior decision of the court. The Journal-Sentinel should in fairness clarify these distinctions, if only for the benefit of the impressionable right.

Stephens has gone out of her way to define herself as the "open-minded" candidate . . . Her self-proclaimed "open mind" and "unbiased" approach ring hollow when viewed in the larger context of her actions. — Thus sayeth "a new group in town"

Stephens released the names of thirteen former and current state legislators who have endorsed her campaign. All are Democrats including Joe Wineke, former Chair of the Wisconsin Democratic Party.

It's a pity neither Charlie Sykes nor his "new group in town" checked Justice David Prosser's own website, which lists endorsements from dozens (75 to be exact) of elected officials. Every single one of them is a Republican (including some real dandies, like Glenn Grothman).

Plus two former executive branch officials — one is the ridiculously partisan operative Margaret Farrow — both of whom are Republicans.

Verdict: Prosser FTW.

Hypocrisy, Count II:

Since 1999, Stephens has contributed $2,875 to Wisconsin political campaigns. All of Stephens' contributions have been to Democratic and liberal candidates.

In fact only $1,725 of that, in increments no larger than $100, was to candidates running for partisan offices. Meanwhile Justice Prosser was donating $3,150 to "Republican and conservative candidates."**

Verdict: Prosser FTW.

Hypocrisy, Count III:

She describes herself as "a member of the Democratic party, on and off, throughout [her] life."

She did say that, but she wasn't "describing herself" as such, she was responding to Frederica Freyberg's direct question, "What is your [political affiliation]." That phony hypocrite! — answering truthfully.

Well, let me say this. I have the most partisan background of any member of the court.

And indeed Justice Prosser was positively advancing this self-description of his own volition, as his averment was in response to Ms. Freyberg's inquiry, "What is your judicial philosophy."

What he meant was he was not only a member of the Republican Party, he was a Republican legislator in the Wisconsin State Assembly for 18 years, including six as minority leader and two as speaker.

Moreover, exactly as fits Charlie Sykes & Co.'s groundless allegations of "political phoniness" and hypocrisy against Atty. Stephens, Justice Prosser went on to disassociate himself from those former political affiliations for the purposes of fair and impartial judging.

And rightly so, to the equal credit of both candidates.

Therefore those affirmations of impartiality made by both Justice Prosser and Atty. Stephens are identical, the only difference being Prosser having raised the issue without being urged to do so.

"Gone out of his way," to coin a phrase.

Verdict: Prosser FTW.

Finally:

Media Trackers is a Wisconsin-based organization dedicated to media accountability, government transparency, and quality fact-based journalism.

Not quite. Rather, this "new group in town" is dedicated to laughable, painfully amateurish drek. Which is right up Charlie Sykes's alley.

It's abundantly clear who's pushing the dishonesty around here.

* a.k.a. the Fairness Doctrine.

** He also gave $500 to Shirley Abrahamson, which anybody who witnessed his fingerpointing mini-tirade toward the Chief Justice at last week's open administrative hearing might imagine he regrets.

Three more contributions totaling $650 were dispensed throughout 1997 and 1998 to former Republican Governor Tommy Thompson. Thompson appointed Prosser to the Supreme Court in late 1998.

"I think Joel has been smoking some of the stuff he wants to legalize," Prosser said, referring to Winnig's position on marijuana.

Maybe those headline writers are as well, because neither Marla Stephens nor JoAnne Kloppenburg, although they've both fairly criticized Gableman's 2008 shenanigans that made him the defendant in an ethics case, has come anywhere close to "denouncing" him.

Stephens said the opinion that Prosser supported did not take into account the ad's overall message. "You don't take a statement and parse it . . . phrase by phrase. You take a statement as a whole," she said.

Exactly so.

There was insufficient attention* given by either court that considered the matter as to what is meant by the word "statement" in the Wisconsin code of judicial conduct, which is one of the reasons why this case still generates commentary. So conservatives who are complaining that the Gableman controversy should be forgotten and moved on from can stop talking about Roe v. Wade (1973) any time.

At least the latter decision resulted in a final judgment, whereas Gableman failed in his bid to obtain one from any Wisconsin court.

* Excepting by Ralph Adam Fine, a member of the three-judge panel that first heard Michael Gableman's unsuccessful motion to dismiss. Judge Fine wrote that setting each of the ad's individual spoken English propositions in isolation was "a crabbed reading, lashed to the mast of sentence-by-sentence literalism, and ignores the way we use language, often deriving significant meaning from implication."

Here are some of the couples that Walker, Appling, and their fellow travelers worked tirelessly to deny equal protection of the law:

Alicia Toby and Saundra Heath, who reside in Newark, have lived together for seventeen years and have children and grandchildren. Alicia is an ordained minister in a church ...

Mark Lewis and Dennis Winslow reside in Union City and have been together for fourteen years. They both are pastors in the Episcopal Church.

Diane Marini and Marilyn Maneely were committed partners for fourteen years until Marilyn's death in 2005. The couple lived in Haddonfield, where Diane helped raise, as though they were her own, Marilyn’s five children from an earlier marriage.

Karen and Marcye Nicholson-McFadden have been committed partners for seventeen years. ... [T]hey are raising two young children conceived through artificial insemination, Karen having given birth to their daughter and Marcye to their son.

Suyin and Sarah Lael have resided together in Franklin Park for most of the sixteen years of their familial partnership. ... They live with their nine-year-old adopted daughter and two other children who they are in the process of adopting.

Cindy Meneghin and Maureen Kilian first met in high school and have been in a committed relationship for thirty-two years. They have lived together for twenty-three years in Butler where they are raising a fourteen-year-old son and a twelve-year-old daughter. Through artificial insemination, Cindy conceived their son and Maureen their daughter.

Recently, Lieutenant Governor Rebecca Kleefisch in an interview with a fundamentalist Christian radio station likened gay couples to dogs.

Every argument that so-called "traditional marriage" proponents have presented to courts throughout the country has been debunked, leaving little else to their positions except homophobia and bigotry.

In America, religious adherents, who can switch or even reverse their sectarian affiliation at the drop of a hat, enjoy more heightened legal protections for their various beliefs than do those whose sexual orientation differs from the majority. That situation shouldn't stand.

The case is Thomas More Law Center v. Obama, wherein a district judge in Michigan found in favor of the PPACA's constitutionality:

There is a rational basis to conclude that, in the aggregate, decisions to forego insurance coverage in preference to attempting to pay for health care out of pocket drive up the cost of insurance. . . . While plaintiffs describe the Commerce Clause power as reaching economic activity, the government's characterization of the Commerce Clause reaching economic decisions is more accurate.

That's a provocative way to characterize a prospective colleague and one unlikely to improve the public and private testiness between the State Supreme Court's so-called liberal and conservative factions.

Joel Winnig also suggested that incumbent Justice David Prosser, the fellow he hopes to replace on the court, doesn't know the difference between right and wrong, which coincidentally is an element of what's popularly known as the insanity defense (a criminal defendant's inability to recognize certain moral distinctions is the manifestation of a mental disease or defect, according to Wisconsin law).

Winnig may be smelling blood in the water and stepping up his game after yesterday's reports indicating that one of his primary election rivals, Marla Stephens, hasn't raised enough money to run any Statewide teevee ads.* Stephens opted out of the public financing scheme that dispenses to primary candidates $100K in public money.

The two candidates who survive the February 15 primary each receive another $300K to continue toward the general election on April 5. Winnig also told Ms. Cardin he'd seek an additional $300K to combat an expected third-party onslaught of conservative advertising — including by the notorious Koch Bros. — devoted to protecting Justice Prosser, who presents himself as the conservative candidate.

Justice Prosser is a lock to advance beyond the primary and will face either Mr. Winnig, Ms. Stephens, or JoAnne Kloppenburg in April.

Said Winnig, "I tell my clients I set out not to become wealthy as a lawyer and I succeeded long ago." That's a pretty good line though.

* It's absurd that this factor would be among the qualifications for a seat on the Supreme Court, but apparently that's the way it works.

We will serve [Ronald Reagan's] legacy well by remembering this history, and honoring the principals that defined him as one of our nation's finest leaders.

Part of that history, according to U.S. Senator Ron Johnson, involved "facing incredibly high interest rates," and "recogniz[ing] that government was not the solution, but a major part of the problem. So he set out to limit the size of government."

It's funny because Ron Johnson appears to have forgotten that his own solution to high interest rates was borrowing millions of dollars at several points below market,* a convenience that just happens to have been facilitated by all three levels of government — federal, State, and municipal — in the form of industrialrevenuebonds.

And, when Johnson learned that some businesses in Vermont had availed themselves of precisely the same mechanism, he criticized them in a campaign flyer attacking Russ Feingold who, for all his alleged faults, knew the difference between principals and principles.

Senator Feingold actually both possessed and adhered to the latter, in stark contrast to the current incumbent's situational hypocrisy.

Johnson ran as a "citizen legislator" against "career politicians" (like Scott Walker and F. James Sensenbrenner), yet it's only taken him a few weeks to behave exactly as the hypocrites he claimed to oppose.

Strictly speaking, Obamacare does not mandate the purchase of insurance. It says that those who remain uninsured must pay a tax. Vinson says this mandate cannot be upheld under Congress' sweeping tax powers.

Except Judge Vinson's most recent order is confined to the narrow question of whether Congress is properly exercising its powers under the Interstate Commerce Clause. The administration had previously argued that the mandate was a tax, and in fact Judge Vinson rejected that argument back in October,* as have even those district courts which have otherwise sided with the Obama administration.

Prof. Amar — and, indeed, the administration — might wish to resuscitate it, but doing so doesn't address the Commerce Clause question, as the latter is not where Congress's power to impose taxes resides. So this is some goalpost-shifting by Prof. Amar and therefore not an appropriate ground to attack Judge Vinson's ruling.

And, in the New York Review of Books, Georgetown's David Colerefers to the Necessary and Proper Clause as "[t]hat catch-all provision" which "authorizes Congress to enact laws that, while not expressly authorized by the Constitution’s specific enumerated powers, are 'necessary and proper' to the exercise of those powers."

First of all, if the Necessary and Proper Clause really is a "catch-all provision" — emphasis on "all" — then Judge Vinson is exactly correct, in that viewing it as such would render Congress's legislative powers not just "virtually" unlimited, but actually unlimited in practice.

But obviously there are limits to Congress's authority — see, for further evidence of those limits, the Bill of Rights — and bold assertions of the said "catch-all provision" do not alter that fact.

Secondly, Congress's authority to impose the mandate must first be discovered within Congress's enumerated powers before any other necessary and proper acts may be justified to carry it into execution. The N&P Clause is not a separate grant of legislative power, but rather is present to facilitate bringing those enumerated powers to effect: if there's no enumerated power, then there's no propriety.**

Prof. Cole also "goes there," observing of a prior decision issuing from a federal district court in Virginia that similarly found the insurance mandate to be beyond Congress's authority:

Judge Hudson and the Virginia attorney-general are situated squarely within a tradition—but it’s an ugly tradition. Proponents of slavery and segregation, and opponents of progressive labor and consumer laws, similarly invoked States' rights not because they cared about the rights of States, but as an instrumental legal cover for what they really sought to defend—the rights to own slaves, to subordinate African-Americans, and to exploit workers and consumers.

Anyway, even the staunchest admirers of Judge Vinson's handiwork shouldn't get too excited about these recent rulings, as the Supreme Court engages the relevant questions presented to it de novo ("anew, afresh") which means the SCOTUS needn't pay any heed to those lower courts' holdings while it conducts its own independent review.

Likewise, Vinson's and Hudson's detractors should keep their powder dry as well, particularly when they're accusing federal judges and State attorneys-general of behaving like slaveowners, as it detracts considerably from whatever legitimate objections they may have.

* "My earlier ruling [dismissing] the defendants' tax argument is incorporated into this order and, significantly, has the effect of focusing the issue of the individual mandate on whether it is authorized by the Commerce Clause." — Vinson, Jan. 31, footnote 4.

The dismissal of that argument was the most problematic blow to Obamacare thus far, in your correspondent's own humble estimation.

Reports The Economist, among many others. Wisconsin's Attorney General J.B. Van Hollen's unseemly triumphalism raised an unholy ruckus the other day after a federal judge in Florida declared Obama's health care act unconstitutional. Consternation was high over Van Hollen's remarks, especially within liberal quarters.

But you know what? J.B. Van Hollen was/is correct, even though the PPACA's demise may be short-lived.* The Constitution is clearer on this point than it is on the question of whether the individual insurance mandate violates the Interstate Commerce Clause:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.

"And" is the operative word there, and obviously the U.S. District Court for the Northern District of Florida is among those ordained and established by Congress (much to its current regret, perhaps).

In other words, if the Supreme Court can slap on an injunction preventing the enforcement of federal legislation — and it can — then so might a district court. The judicial power inheres in both equally.

While Judge Clyde Roger Vinson did not expressly grant the injunction the plaintiffs — who included J.B. Van Hollen despite his Johnny-come-lately presence in the case caption — sought, he instructed the federal government his order was tantamount to an injunction, relying instead on the federales' good faith in treating it as such.

JBVH's basking in the press glow may have been provocative and, frankly, annoying,** but he's not wrong as a matter of law.

* Odds are good Obama will win a stay over Judge Vinson's ruling pending an appeal to the 11th Circuit. In the meantime the administration's own defiant pronouncements rest on shaky grounds.

** The AGs of Ohio and Texas, for example, were considerably more circumspect and, in this observer's estimation, more professional. I understand the AG's is a partisan office but it needn't be so deliberately blatant — and for many people, insensitive — about it.

Justice David Prosser had a chance to deal with the ethical failings of one of the court’s own members but refused. Justice Michael Gableman won his last election based on a campaign ad that was condemned by newspaper editorial boards across the state as a misleading attempt at race baiting. They called it "purposeful distortion," and "a lie." This ad was such a distortion that Justice Gableman's lawyer was forced to defend it by saying justices should be able to mislead the public in campaign ads. Justice Prosser bought the argument. He could have held his colleague to a higher standard. He did not. Justice Prosser supported a decision that says campaign season is open season on the truth.

The misconduct of Judge Michael Gableman, which was charged by the Judicial Commission, would have been punished if Justice David Prosser had voted for discipline, along with three other justices who were willing to hold Gableman to account. I would have held him to account. I will not allow lawyers to get away with intellectual dishonesty before the Supreme Court.

JoAnne Kloppenburg, the assistant attorney general who's running for the Wisconsin Supreme Court, distinguishes herself from her opponents in an interview Monday with Steven Walters:

Kloppenburg: What is a campaign issue is what [incumbent Justice David Prosser] has said in his campaign. He said that he is the conservative candidate and will be the conservative justice. His campaign said that he will complement the work of the new governor and the legislature and that of the four candidates he is best able to work with the legislature.

The court is a separate and co-equal branch of government and at times it is a check on the legislature at the same time that it might, it reviews legislation and it may support the legislature or it may not, but you don't know ahead of time. For him to telegraph how he's inclined to rule is a real problem and is a real issue in this campaign.

In addition to Justice Prosser, we have Joel Winnig who talked about how he will work to change laws.

Walters: Yes, he has a very activist view of justice.*

Kloppenburg: An activist is someone who prejudges cases, like Justice Prosser, or who says he's going to change laws, like Joel Winnig. If you want to do that, you run for the legislature, you don't run for the court. And then Marla Stephens has said she'll be an advocate for the court. I've litigated cases around the State; in fact ... as a litigator, I'm the one who advocates. The judge needs to be impartial and independent.

Kloppenburg also said of Michael Gableman's notorious 2008 child molester teevee ad, "any reasonable person would call that ad to be a lie," and the perception created by the Supreme Court's 3-3 split in the subsequent ethics case against Gableman was that it was drawn along partisan lines and that it had damaged the court's reputation.

Nevertheless Kloppenburg agreed with three of those justices, in that the case against Gableman should have moved forward rather than letting it hang out there pending without any resolution:**

I have not read the full record, and I think that the justices who would have moved the case forward would have called for a trial in order that more facts could be brought out.

In fact it's not at all clear from the State statutes that the Wisconsin Judicial Commission, which brought the complaint against Gableman, retained a legal option to present its case to a jury. For that reason the Commission announced it would suspend prosecuting its complaint in the wake of the 3-3 split, but has never joined any motion requesting that the complaint be formally dismissed.

The primary election takes place February 15, which will most likely reduce the slate of candidates to Justice Prosser and one of the three current challengers. JoAnne Kloppenburg leads the fundraising race.